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Solving the Nonlawyer Mediator Dilemma: The Need for Flexible Unauthorized Practice Standards

by Seth Linnick

This article evaluates the ethical and legal boundaries constraining the conduct of nonlawyers [1] who serve as third-party mediators. More specifically, it addresses the considerable uncertainty surrounding nonlawyer mediators and the unauthorized practice of law ("UPL"). After surveying the modern landscape of UPL jurisprudence, it becomes apparent that the underlying cause of the uncertainty is widespread reliance on a rigid legal distinction that is far more effective in theory than in practice. Thus, in order to achieve clarity in the rules governing nonlawyer mediators, it is necessary to adopt a new philosophy which embraces more flexible UPL standards that naturally accommodate the unique circumstances surrounding each individual mediation.

This assessment begins by examining the reasons that nonlawyers should be allowed to serve as mediators. It is important to establish this justification before considering the particular mediation practices in which nonlawyers should be permitted to engage. Second, the article addresses the unavoidable questions raised by the presence of nonlawyers in mediations, specifically in regard to UPL. It considers some prevailing trends in UPL jurisprudence and looks at some of the penalties levied against nonlawyers for violating various UPL statutes and ethical codes. Next, it evaluates and summarizes five traditional UPL tests and discusses why these tests provide insufficient guidance for nonlawyer-mediators. Then, the analysis turns to two recently enacted sets of guidelines from North Carolina and Virginia that were drafted specifically to govern mediation. These guidelines illustrate a growing movement in UPL governance and highlight the common ambiguity that will continue to limit the effectiveness of UPL statutes in the future. Finally, the article prescribes a significant philosophical change that should be incorporated into any future UPL regulations.

I. The Importance of the Nonlawyer-Mediator

While mediation frequently incorporates elements of law and legal skills, the practice of law and the practice of mediation are not one and the same. [2] In light of this reality, it would be shortsighted to assume that all lawyers are necessarily better mediators than nonlawyers. [3] Rather, studies indicate that nonlawyers often bring a unique perspective to the bargaining table. [4] Thus, the exclusion of nonlawyers from the field of mediation would eliminate the freedom presently available to parties to resolve their disputes through a variety of mediation styles and philosophies. Instead, parties would be left with a system controlled by the same attorneys responsible for the often rigid and adversarial legal system. [5]

In most contexts, the role of third-party mediator may be played by either a licensed attorney or someone lacking formal legal training and certification. [6] Perhaps surprisingly, most mediators working today are members of this second class and have little or no legal expertise. [7] As the use of mediation continues to gain widespread popularity, the demand for experienced mediators will invariably grow along with it. [8] While it is certainly conceivable that this growing demand could be satisfied by legal professionals alone, the presence of experienced nonlawyer-mediators in the field will vastly expand the number of options available to parties seeking mediation services.

Aside from this basic quantity-driven justification, nonlawyer-mediators may also bring a unique skill set and perspective to mediations that are not commonly found in licensed attorneys. [9] For example, due to their ignorance of applicable laws and precedents and lack of formal legal training, nonlawyer-mediators are often better suited to conduct informal mediation sessions. [10] The more relaxed atmosphere created by the nonlawyer's penchant for informality often fosters better communication between the parties. [11] When the focal point of the mediation is shifted away from rigid legal rules and conjectures about probable legal outcomes, the parties tend to begin to focus on their real interests and develop more creative solutions. [12] It is for this very reason that flexibility and informality have been considered hallmarks of the mediation process. [13] Thus, given its desirable effects on the behavior of parties in mediation, the nonlawyer's ignorance of the law may be viewed as a positive characteristic. [14]

In addition, while many lawyer-mediators have trouble abandoning their deeply-rooted adversarial mindsets that have been nurtured by years of legal training, nonlawyers tend to have a "less combative and antagonistic" frame of mind. [15] As a result, in his or her role as mediator, a nonlawyer is more likely to identify the interests underlying each party's positions and seek common ground through which the parties can come to mutually beneficial agreements. [16] This open-mindedness may also allow the nonlawyer to achieve greater success by encouraging the parties to think outside of the box and explore more creative or atypical solutions to their problems. [17]

Another noteworthy characteristic of nonlawyer-mediators is their tendency to gravitate towards a more facilitative, rather than evaluative, style of mediation. [18] Facilitative mediation promotes greater involvement by the parties themselves and tends to result in agreements that are more reflective of parties' genuine needs and desires. [19] This notion of self-determination is "among the pillars of the mediation process." [20] Studies have shown that its presence in the mediation process also tends to result in settlements that the parties are more likely to carry out. [21] In addition, the proclivity of nonlawyers to seek maximum party involvement tends to mitigate the negative impact that the presence of legal counsel can have on mediations. [22] Unlike the lawyer-mediator, more likely to deal with the other lawyers in the room, the nonlawyer-mediator is more apt to deal directly with the parties themselves. [23] Thus, in the presence of a nonlawyer-mediator, an attorney's capacity to burden the proceeding with an adversarial mindset is greatly diminished. [24]

Finally, when seeking a mediator, parties often view nonlawyers as an attractive alternative to legal professionals simply because they tend to be more affordable. [25] For example, in many divorce mediations, parties may not necessarily need to incur the additional expense of employing a lawyer-mediator because the legal issues involved in the dispute may be fairly uncomplicated. [26] Requiring a lawyer-mediator in this scenario would likely eliminate some of the cost savings that parties often seek when bringing their divorce disputes to mediation. [27] Unlike nonlawyers, lawyer-mediators, aware of the fact that parties will want to rely on their legal expertise and hold them to a higher standard of care, tend to account for the advantages they afford through higher fees. [28] Moreover, most are reluctant to meet competition from nonlawyers by offering comparable fees. [29] As a result, parties seeking to benefit from the cost savings offered by mediation may find greater satisfaction with a nonlawyer-mediator.

Overall, while it would be unfair to suggest that nonlawyers make better mediators than lawyers, at the very least, the participation of nonlawyers in mediation provides parties with a wider variety of affordable options. In addition, the collaborative mentality that nonlaywers tend to bring to the bargaining table creates an effective median through which parties often have greater success reaching an amicable agreement. For these reasons, it is important to ensure that the field of mediation always preserves a place for nonlawyers.

II. Red Flag: The Unauthorized Practice of Law

The importance and fundamental need for nonlawyer-mediators is readily apparent, but their involvement in the mediation process invariably raises a difficult question. How can nonlawyers serve as mediators when mediation often becomes intertwined with legal evaluation and the practice of law? First, before addressing this question, it is important to recognize that according to the prevailing view, by merely performing the basic functions of a mediator, an individual is not engaging in the practice of law. [30] However, this seemingly simple definition becomes far more complicated when mediators go beyond serving as mere facilitators for the parties. In reality, mediators often engage in many practices, beyond simply facilitating discussion, which may lead parties to believe that their mediators are legal professionals such as: dispensing legal advice, evaluating the legal merits of a case, helping draft settlement agreements, or assisting in the drafting of court documents. [31]

Unfortunately, given the rising demand for these more proactive evaluative mediation techniques, the unintentional deception of mediation parties is a problem that will probably continue to escalate in the future. [32] Recognizing the potential consequences of this growing dilemma, state and local enforcement agencies [33] have begun to heighten their scrutiny of mediator practices. [34] The concern among these agencies is that some mediators may be crossing the line between providing permissible mediation services and engaging in the unauthorized practice of law. [35]

The mediators affected by the aforementioned problems arising from evaluative mediation tactics are not limited to nonlawyers. Lawyer-mediators, like their nonlawyer counterparts, may also be sanctioned for practicing law while mediating. [36] However, while both lawyer and nonlawyer may be sanctioned for giving legal advice, there is an important distinction between the two regarding how violations are typically characterized. [37] When a lawyer practices law while mediating, it is generally considered a violation of mediator ethics or a lawyer's code of professional responsibility. [38] On the other hand, when a nonlawyer does the same, the violation may be characterized as the unauthorized practice of law. [39]

At the present time, the number of UPL charges that have been filed against nonlawyer-mediators is still relatively small. [40] However, the number is beginning to grow, [41] and in many states, the consequences facing mediators found guilty of UPL violations are extremely harsh. Though most states still classify UPL violations as misdemeanors, in some states, they can actually result in criminal penalties. [42] In others, they may constitute contempt of court or result in injunctions against further practice. [43]

The broad variance among states in regard to the severity of their UPL penalties is of obvious concern to nonlawyer-mediators. [44] However, this problem is further compounded by the lack uniformity among state UPL enforcement standards. [45] These standards, often ambiguous in and of themselves, create a wildly inconsistent set of guidelines to which mediators are expected to adhere. To make matters worse, in many jurisdictions, the state provisions still relied upon to govern UPL have not even been formally applied to mediation. [46] Thus, mediators are left to conjecture as to how courts in these jurisdictions might apply UPL standards to mediation based on how they have been applied in other contexts. [47] The result, in most states, is that the line between permissible actions and the practice of law is drawn in accordance with one of the following five general tests (the "Five Tests"): [48]

  1. The "Commonly Understood" Test: This test asks whether or not the task is one that the community traditionally expects to be performed by a lawyer. [49]
  2. The "Client Reliance" Test: This tests hinges on whether the parties actually believe that they are receiving legal services. [50]
  3. The "Relating Law to Specific Facts" Test: This test classifies acts as the practice of law if they involve relating general legal principles to a specific fact pattern or case. [51]
  4. The "Affecting Legal Rights" Test: This test asks, in very broad terms, if the matter inherently involves the parties' legal rights. [52]
  5. The "Attorney Client Relationship" Test: The determining factor under this test is whether or not the relationship between the parties is easily distinguishable from an attorney-client relationship. [53]

The distinctions drawn by these tests present some vague guidelines for nonlawyers to use to steer themselves away from UPL violations but hardly achieve the clarity necessary to protect even the most well-intentioned mediator. Recognizing the insufficiency of the Five Tests, some states have elected to take proactive steps to develop more transparent guidelines specifically for mediators.

One such state at the forefront of the movement to develop standards applicable specifically to mediation is Virginia. [54] The Virginia Guidelines on Mediation and the Unauthorized Practice of Law (the "Virginia Guidelines"), drafted by the Supreme Court of Virginia, attack the issue by identifying two common types of mediator practices that could be considered the practice of law. The first, dispensing "legal advice" is described as follows:

A mediator is considered to have offered legal advice when 'he or she applies legal principles to facts in a manner that (l) in effect predicts a specific resolution of a legal issue or (2) directs, counsels, urges, or recommends a course of action by a disputant or disputants as a means of resolving a legal issue.' [55]

It is important to note that this definition permits mediators to provide copies of statutes and cases, ask reality testing questions, and even state what they understand to be the governing law on a given issue. [56] As opposed to giving "legal advice," a prohibited practice, providing "legal information" is generally permissible. [57] However, the Virginia Guidelines explicitly forbid a mediator from applying law to factual situations or using it as a basis for any sort of advice or guidance.

The second distinct practice identified by the Virginia Guidelines is the drafting of settlement agreements. [58] With respect to these agreements, the Virginia Guidelines note that settlement agreements are contracts, which, in turn, makes them legally enforceable documents. Nevertheless, Virginia authorizes nonlawyer-mediators to draft written agreements for parties "so long as they, like attorney-mediators, limit their drafting services to those of a scrivener." [59] Thus, nonlawyers are deemed to have engaged in the practice of law if their drafting activities extend beyond those terms specified by the parties. [60]

Similar to the Virginia Guidelines, the focus of the North Carolina Guidelines for the Ethical Practice of Mediation and to Prevent the Unauthorized Practice of Law ("North Carolina Guidelines") is primarily the two categories of legal advice and settlement agreements. As it pertains to legal advice, the North Carolina Guidelines take a comparable approach to that of the Virginia Guidelines. "In the mediation context, a non-attorney mediator who takes the facts of a particular case, applies these facts to the law of the matter and advises a participant to the mediation as to this analysis, is committing the unauthorized practice of law." [61] Exempted from this class of impermissible actions, just as it is allowed under the Virginia Guidelines, is the supply by nonlawyer-mediators of basic legal information such as brochures and copies of applicable law. [62] Essentially, the North Carolina Guidelines attempt to mirror the Virginia Guidelines by trying to differentiate between "legal advice" and "legal information."

On the topic of settlement agreements, [63] the North Carolina Guidelines permit the drafting of documents by nonlawyer-mediators but they repeatedly emphasize that such individuals cannot offer any advice as to the legal effects of such documents. Additionally, the Guidelines state that the mediator should encourage the parties to consult with legal counsel before creating any writings that they intend to be legally binding. [64]

III. A New Direction

Both the North Carolina and Virginia Guidelines represent a significant progression in UPL governance for nonlawyer-mediators. Not only have they refined and synthesized many of the general principles underlying the Five Tests, they are also the first attempt to tailor UPL provisions specifically to mediation. This alone makes these guidelines a more effective articulation of the distinction between permissible conduct and UPL than previously existed. However, while the guidelines symbolize progress, they are admittedly less than perfect. The standards set forth by the guidelines may still be extremely difficult to enforce in practice. As stated in the North Carolina Guidelines, "there are no bright lines" in the distinctions made by the new rules. [65] Unfortunately, until some brighter lines begin to appear, nonlawyer-mediators will continue to be vulnerable to the threat posed by UPL sanctions.

One practical flaw in the North Carolina and Virginia Guidelines is that they tend to rely too heavily on the presence of an easily discernable division between "legal information" and "legal advice." The reality, however, is that in most situations, when a mediator decides to bring any kind of substantive law to the attention of the parties, the division between legal advice and legal information will quickly become murky. [66] The following statement, an example created by lawyer-mediator David Hoffman, provides a prime illustration of the problem inherent in the distinction between legal information and legal advice: "The plaintiff seems to have a better liability case than [the defendant]." [67] As Hoffman points out, whether this statement constitutes legal information or legal advice is unclear. [68] Similarly, consider the following statement: "This proposal could turn out to be a good thing for you." [69] Under the second prong of the legal advice test created by the Virginia Guidelines, would this constitute "directing, urging, or recommending a course of action?" Ambiguities such as these are bound to arise when mediators are asked to walk the sometimes invisible line between advice and information.

The drafters of the North Carolina and Virginia Guidelines are not the only groups that have struggled to articulate a clear difference between advice and information. For example, in its 2004 Proposed Policy Statement on the Authorized Practice of Mediation ("ACR Proposal"), the Association for Conflict Resolution ("ACR") grouped mediation practices into three categories: authorized, improper, and "rub areas" warranting increased scrutiny. [70] Among the authorized practices were listed the following:

  • Facilitate the parties' conversation about applicable law
  • Facilitate the parties' discussion regarding their assessments of the strengths and/or weaknesses of their respective cases
  • Prepare agreements that incorporate only the terms agreed to by the parties [71]

The second group, improper practices, included the following:

  • Apply legal precedent to the specific facts of the dispute
  • Advise parties about their legal rights and responsibilities...
  • Offer any personal or professional opinion as to how the court in which a case has been filed will resolve the dispute [72]

The third category, "rub areas," contained the following:

  • Proposing options for parties' consideration
  • Recommending a specific course of action
  • Providing any personal or professional evaluation of the strengths and weaknesses of the case, either directly or implicitly, even when it is not intended to coerce the parties or direct a resolution. [73]

Much like the North Carolina and Virginia Guidelines, the ACR proposal falls short in its attempt to draw any practical distinction between authorized practices — legal information — and those which it deems improper — legal advice. It simply places the controversial practices into a separate group, the "rub areas," and advises mediators to engage in their own decision-making "based on careful consideration of the fundamental values of mediation in order to preserve the integrity of the process." [74] It seems unrealistic to assume that nonlawyer-mediators will always be able to properly determine whether or not a "rub area" tactic should be permitted under the circumstances. Thus, although the labels used by the ACR Proposal differ from North Carolina and Virginia, all three fail to draw a clear line between advice and information. Aside from this fundamental deficiency, the North Carolina and Virginia Guidelines also fall short on the subject of written agreements. When evaluating a written agreement or memorandum of understanding generated by a mediator, it would be very difficult to know if he or she had acted solely as scrivener, as demanded by the guidelines, or instead, drafted beyond the explicit instructions of the parties. [75]

This recognition of the shortcomings of the North Carolina and Virginia approaches suggests that a basic change in philosophy will be necessary for the next generation of UPL statutes designed for mediation to ease the burden on nonlawyer-mediators. Some have suggested that the solution to the information/advice problem is to eliminate the distinction altogether and simply exempt mediators from UPL rules. [76] However, giving nonlawyer-mediators unlimited freedom to dispense advice would pose a serious risk to mediation party participants. [77] The outcomes of mediations could potentially be shaped by legally inaccurate information and there would be no avenue for recourse against offending mediators. Clearly, this solution is too dangerous to warrant serious consideration.

Unfortunately, this article will not attempt to assert some kind of "perfect solution" to the UPL problem facing the nonlawyer-mediator because such a solution simply does not exist. Any proposed guidelines will invariably be forced to face the same questions regarding the line between permissible conduct — legal information — and that which is impermissible — legal advice. As the ACR Proposal illustrated, simply changing the phrasing of the rules will not allow mediators to circumvent this basic dilemma. No matter how future drafters choose to script new guidelines, they will eventually have to ask themselves how far nonlawyers should be allowed to stray from facilitative mediation into the domain of evaluative mediation, and this is the essential question in the legal information versus legal advice debate. [78]

Having conceded that there are no easy answers that will somehow allow the next wave of guidelines to solve all the nonlawyer-mediator's UPL issues, there is still one basic ideological change that could allow future regulations to drastically improve upon their predecessors. Presently, most UPL guidelines, including those of North Carolina and Virginia, implicitly assume that all mediation situations are the same. However, this assumption is fundamentally flawed. In reality, mediations can differ drastically from one another depending on a variety of surrounding circumstances. The potential inconsistencies in these contextual factors make it virtually impossible to draw a comprehensible division between permissible evaluative mediation and UPL under the "one size fits all" mentally which dominates existing UPL guidelines. [79] Rather, in the future, in order to devise a standard that works properly in all mediation situations, drafters of UPL regulations must take a more practical approach and embrace a more flexible standard which acknowledges the importance of context in the mediation setting. [80] With this in mind, the line between permissible act and UPL violation should shift gradually depending on several contextual factors.

To effectuate real progress for mediators and party participants alike, the factors should satisfy two objectives. First, they should eliminate, rather than promote confusion. Uncertainty and ambiguity are precisely the qualities that necessitate a shift away from rigid definitions of advice and information, thus, any flexibility factors should avoid these same problems. Second, the factors should seek to improve the quality of service that parties receive from mediators. In practice, this equates to allowing mediators as much freedom as possible to engage in evaluative mediation, if desired by the parties, so long as they have been adequately trained and will do no harm to the parties through their actions.

With these goals in mind, the factors themselves must satisfy two important criterions. The first is that they are easily discernable. For example, one of the contextual factors suggested by the ACR Proposal is the presence of counsel. [81] Since both a mediator and an enforcing agency could easily determine whether or not a mediation session was being conducted in the presence of counsel for the parties, this appears to satisfy the first criterion. On the other hand, another contextual factor mentioned in the ACR Proposal is the parties' understanding of the mediation process and the role of the mediator. [82] Unlike the presence of counsel, which is clearly identifiable, this contextual element is often difficult to ascertain and could be subject to a wide variety of perceptions and interpretations. Thus, it would it would not be a good factor upon which to base the UPL line because it would lead to the same type of ambiguity problems caused by the advice versus information distinction.

The second criterion is that the factor provides persuasive evidence that the nonlawyer-mediator's evaluations and observations will either be accurate, valuable to the parties, or unbiased. This requirement aims to strike the balance sought by the mediation quality objective and insure that the governing UPL standard will afford competent mediators as much freedom as possible to aid the parties. Again, using the presence of counsel as an example, the existence of this factor provides compelling evidence that any inaccurate or misleading evaluations made by the mediator will be corrected before reaching the parties and that the parties will be able to interpret the evaluations accurately. A factor such as the relationship of the parties does not have such probative value, hence, it would not be a good variable to incorporate into the guidelines.

With these criteria in mind, the following factors appear to be suitable UPL dependency variables:

  1. The Presence of Counsel: As stated, this element easily satisfies both criterions. It is a yes or no proposition and if it exists, it strongly suggests that evaluations by the mediator will not adversely affect the mediation. Thus, when counsel is in fact present for both parties during a mediation session, UPL standards should be relaxed. Many jurisdictions have already incorporated this element into their UPL enforcement practices by refraining from prosecuting mediators who communicate legal advice or drafting suggestions to counsel for the parties. [83]
  2. The Mediator's Fee or Lack Thereof: This clearly satisfies criterion one. The mediator, the parties, and an enforcement agency already know, or could easily obtain this information. The information satisfies the second criterion as well. As held by the Missouri Supreme Court, when an individual charges a fee for a law-related service, the person is essentially implying that they are in the business of law. [84] Thus, if a fee is being charged by a nonlawyer-mediator for his or her services, the parties are more likely to believe that the mediator has legal expertise and will accord more weight to any evaluative statements he or she might make. The real question, however, is how UPL guidelines should shift to accommodate this contextual element. If the parties naturally expect that professional mediators will have more substantive legal knowledge, the law should permit them to engage in more evaluative mediation practices. However, greater responsibility should also accompany this additional freedom. Paid mediators should be forced to satisfy additional training requirements and should face more severe penalties for violating the more liberal UPL standard.
  3. The Nature of the Mediation Program (Court vs. Non-Court): Prong one of the factor test is satisfied as it is common knowledge whether a mediation program is operated by a court. Regarding the second criterion, in a court-operated mediation program, the court often regulates the program and assumes responsibility for ensuring the quality of the mediators. [85] The presence of additional training requirements and regulatory oversight adds an extra layer of protection against the possibility that overly evaluative mediator statements will negatively affect the parties. Due to these additional safeguards, many jurisdictions have relaxed standards for court-appointed mediators. [86] Any new UPL guidelines drafted for mediation should follow suit.
  4. Whether or Not the Dispute is In Litigation: Once again, this is a simple yes or no proposition. Additionally, the answer can seriously impact the probable accuracy of settlement agreements in particular because court approval may be a prerequisite to the finalization of any agreement. [87] Thus, if the nonlawyer-mediator is mediating a dispute which has already begun moving through the litigation process, UPL standards should be relaxed.

IV. Conclusion

Without a doubt, there is a serious need to preserve the role of nonlawyers in the field of mediation. Their presence provides parties seeking mediation services with a diverse set of mediator options from which to choose. In addition, the ability of nonlawyer-mediators to approach mediations with a collaborative mindset and a perspective unconstrained by traditional legal boundaries may actually give party participants greater opportunity to reach mutually desirable agreements.

Incorporating the nonlawyer into mediation has been, and will continue to be, an extremely difficult task. Questions about the unauthorized practice of law will consistently arise as nonlawyer-mediators employ necessary evaluative techniques in mediations and help parties draft settlement agreements. While the five most common tests for determining what constitutes the practice of law have been inconclusive and inconsistent, the new guidelines adopted by North Carolina and Virginia are a major step towards the development of effective UPL rules specifically for mediation. Nevertheless, these new guidelines still rely on a vague distinction that fails to protect the well-intentioned mediator from UPL violations. While there is no easy solution that will correct this problem, serious improvements can be made by accepting the fact that drafting UPL guidelines for mediation should not be a "one size fits all" proposition. Mediators face a wide variety of circumstances, many of which are easily identifiable and highly probative of the accuracy and/or value of the information which they may choose to dispense. Thus, future guidelines should be flexible and base the parameters of UPL upon these circumstantial factors.

[1] See Sarah R. Cole et al., Mediation: Law, Policy & Practice §10:5 (2d ed. 2006). Individuals not licensed as lawyers are commonly referred to as "nonlawyers."

[2] See Stephanie A. Henning, Note, A Framework for Developing Mediator Certification Programs, 4 Harv. Negot. L. Rev. 189, 204 (1999) ("[T]he argument that mediation should be limited to lawyers because mediation is a natural out growth of law and legal skills is unconvincing[.]").

[3] Id.

[4] Id. (citing a study of mediation in Georgia which indicated that nonlawyer-mediators tended to be less evaluative, more interested in problem solving, and more concerned with process than outcome).

[5] Brian Wassner, Note, A Uniform National System of Mediation in the United States: Requiring National Training Standards and Guidelines for Mediators and State Mediation Programs, 4 Cardozo J. Conflict Resol. 1 (2002).

[6] See Douglas H. Yarn, Lawyer Ethics in ADR and the Recommendations of Ethics 2000 to Revise the Model Rules of Professional Conduct: Considerations for Adoption and State Application, 54 Ark. L. Rev. 207, 231 (2001) (noting that under certain circumstances and in certain situations, only lawyers are allowed to serve as mediators).

[7] See Cole, supra note 1, §10:5, at 10-34; Jeffrey W. Stempel, The Inevitability of the Eclectic: Liberating ADR from Ideology, 2000 J. Disp. Resol. 247, 282 (2000).

[8] See Ass'n for Conflict Resol., The Authorized Practice of Mediation 1 (2004), available at (last visited March 28, 2007) [hereinafter ACR Proposal] (recognizing the growth in popularity and use of mediation).

[9] See Mathew Daiker, Despite Challenges, Non-Lawyer-mediators Make Critical Contributions to the Field of Mediation, 3 Mayhew-Hite R. on Disp. Res. and Cts Issue 1 (2004), available at (last visited March 28, 2007).

[10] Id.

[11] Id.

[12] Paul J. Spiegelman, Certifying Mediators: Using Selection Criteria to Include the Qualified — Lessons From the San Diego Experience, 30 U.S.F. L. Rev. 677, 696 (1996).

[13] ACR Proposal, supra note 8, at 7.

[14] See Stempel, supra note 7, at 258.

[15] Daiker, supra note 9; see also Abstracts, 18 Berkeley J. Emp. & Lab. L. 166, 173 (1997) (associating nonlawyer-mediators with non-adversarial thinking).

[16] See Daiker, supra note 9; see also Jacqueline M. Nolan-Haley, Lawyers, Non-Lawyers and Mediation: Rethinking the Professional Monopoly from a Problem-Solving Perspective, 7 Harv. Negot. L. Rev. 235, 252 (2002) ("Lawyers...tend to confine their discussion of conflicts and disputes in structural categories that are familiar to them. 'Cases' are referred to mediation. 'Litigants' participate in the mediation process. Their involvement has given rise to charges that they are making ADR more adversarial and legalistic . . . In the view of one commentator, lawyers have 'intentionally created an ever widening feeling of distance between the everyday citizen and the practice of mediation.'").

[17] Daiker, supra note 9.

[18] Symposium, Toward More Sophisticated Mediation Theory, 2000 J. Disp. Resol. 321, 322 (2000).

[19] See Carole J. Brown, Facilitative Mediation: The Classic Approach Retains its Appeal,4 Pepp. Disp. Resol. L.J. 279, 290 (2004).

[20] Symposium, ADR: An Eclectic Array of Processes, Rather Than One Eclectic Process, 2000 J. Disp. Resol. 295, 300 (2000); see also Marjorie H. O'Reilly, Race, Culture & Mediation, 27 Fam. Adv. 37, 38 (2004) (noting that one of the major advantagaes of mediation is that the parties have greater control over the process and ultimate outcome).

[21] See Craig A. McEwen & Richard J. Maiman, Mediation in Small Claims Court: Consensual Processes and Outcomes, in Mediation Research: The Process and Effectiveness of Third-Party Intervention 53, 59 (Kenneth Kressel et al. eds., 1989).

[22] See Daiker, supra note 9.

[23] Id.

[24] Id.

[25] Andrew S. Morrison, Comment, Is Divorce Mediation the Practice of Law? A Matter of Perspective, 75 Cal. L. Rev. 1093, 1125 (1987).

[26] Id.

[27] Id.

[28] Id.

[29] Id.

[30] See, e.g., John W. Cooley, The Mediator's Handbook: Advanced Practice Guide for Civil Litigation § 1.6.5 (2000); see also ABA Sec. of Disp. Resol., Resolution on Mediation and the Unauthorized Practice of Law (2002), available at (last visited March 28, 2007) [hereinafter ABA Resolution]; Bruce Meyerson, Lawyers Who Mediate Are Not Practicing Law, 14 ALTERNATIVES TO HIGH COST LITIG. 74 (1996) (finding that mediation is not the practice of law because there is no attorney-client relationship). But see Carrie Menkel-Meadow, Is Mediation the Practice of Law?, 14 ALTERNATIVES TO HIGH COST LITIG. 57 (1996) (arguing that certain elements of mediation constitute the practice of law).

[31] Cooley, supra note 30, at 1.6.5.

[32] See Robert A. Baruch Bush, Substituting Mediation for Arbitration: The Growing Market for Evaluative Mediation, and What it Means for the ADR Field, 3 Pepp. Disp. Resol. L.J. 111, 113 (2002) ("[T]here is evidence of a rising level of 'market demand' for a form of mediation in which the mediator provides expert case evaluation (assessing strengths and weaknesses of each party's case), substantive settlement recommendations (based on predictions of court outcomes, for example), and strong pressures to accept those recommendations, in addition to tightly managing the discussion process."); see also Stempel, supra note 7, at 263 (stating that mediators should also be prohibited from giving legal advice to "prevent the mediator from choosing sides, playing favorites, interfering with party-lawyer relations, or impeding voluntary resolution through needless, legalistic Monday-morning quarterbacking").

[33] Examples of such agencies are state Attorney General's offices, district attorney's offices, and state bar UPL committees. David A. Hoffman & Natasha A. Affolder, Ass'n for Conflict Resol. , A Well-Founded Fear of Prosecution: Mediation and the Unauthorized Practice of Law 1 (2000), available at (last visited March 28, 2007).

[34] Id.; see also Michael Moffitt, Ten Ways to Get Sued: A Guide for Mediators, 8 Harv. Negot. L. Rev. 81, 98 (2003).

[35] Hoffman, supra, note 33, at 1.

[36] See, e.g., Virgina Tele-Court Project, Mediation: A Consumer Guide Ch. 2, § 2, available at (last visited March 28, 2007) ("[N]either lawyer nor non-lawyer-mediators may give legal advice to the disputing parties during mediation. Non-lawyers who do so have engaged in unethical mediation practice, which may lead to decertification and are subject to criminal prosecution or civil action for UPL. Lawyer-mediators who provide legal advice have likewise engaged in unethical mediation practice which may lead to decertification and are subject to discipline by the Virginia State Bar.").

[37]See Cole, supra note 1, §10:5, at 10-35 n. 3 (citing Supreme Court of Virginia, Guidelines on Mediation and the Unauthorized Practice of Law).

[38] Id;. see also Moffitt, supra note 34, at 102 ("Even attorneys — for whom UPL poses no threat — confront the prospect of ethical complaints if they engage in the traditional practice of law while acting as a mediator.").

[39] Cole, supra note 1, §10:5, at 10-35 n. 3.

[40] See ACR Proposal, supra note 8, at 2.

[41] See Moffitt, supra note 34, at 102.

[42] Id. at 100.

[43] Id.

[44] See generally Nolan-Haley, supra note 16, at 260 ("UPL enforcement methods vary and may rest with bar associations, supreme court committees or civil and criminal law enforcement through the attorney general or public prosecutor's office.").

[45] Hoffman, supra note 33, at 1.

[46] See Cole, supra note 1, §10:5, at 10-36-10-37 (citing Werle v. Rhode Island Bar Ass'n, 755 F.2d 195, 199-200 (CA1 1985)).

[47] Id.

[48] The five tests were originally laid out in Guidelines on Mediation and the Unauthorized Practice of Law.

[49] Roger Wolf, The Gray Zone: Mediation and the Unauthorized Practice of Law, Md. Bar. J., July-Aug. 2003, at 40, available at http://www.msba .org/departments/commpubl/publications/bar_journ/v36/grayzone.htm (last visited March 28, 2007).

[50] Id.

[51] Id.

[52] Id.

[53] Id.

[54] Nolan-Haley, supra note 16, at 272 (citing Virginia Guidelines on Mediation & the Unauthorized Practice of Law 35-38 (1999)).

[55] Id.(quoting Virginia Guidelines on Mediation & the Unauthorized Practice of Law 35-38 (1999)).

[56] Hoffman, supra note 33, at 3; see also Virgina Tele-Court Project, Mediation: A Consumer Guide Ch. 2, § 4, available at (last visited March 28, 2007).

[57] See generally Wolf, supra note 48, at 40 (recognizing the "large area of gray" between the permissible act of providing legal information and the impermissible act of providing legal advice); Hoffman, supra note 33, at 4 ("The distinction drawn in both sets of Guidelines between 'legal information' and 'legal advice' is a familiar dividing line between permissible and impermissible practice from the standpoint of mediator ethics.").

[58]Virgina Tele-Court Project, Mediation: A Consumer Guide Ch. 3, § 2, available at (last visited March 28, 2007).

[59] Id.

[60] Hoffman, supra note 33, at 3.

[61] North Carolina Bar Ass'n, Guidelines for the Ethical Practice of Mediation and to Prevent the Unauthorized Practice of Law (1999), available at (last visited March 28, 2007).

[62] Id.

[63] The North Carolina Guidelines also refer to a written mediation document as "Memorandum of Understanding." See id.

[64] Id.

[65] See id.

[66] Joel Kurtzberg and Jamie Henikoff, Freeing the Parties From the Law: Designing an Interest and Rights Focused Model of Landlord/Tenant Mediation, 1997 J. Disp. Resol. 53, 83 (1997) ("Many mediators who introduce substantive law to parties during a mediation try to distinguish their actions from those typically conducted by lawyers by relying on the nebulous distinction between providing 'legal information' and providing 'legal advice.'").

[67] Hoffman, supra note 33, at 4.

[68] Id.

[69] Id.

[70] See ACR Proposal, supra note 8, at 8-12.

[71] Id. at 8-9.

[72] Id. at 10.

[73] Id. at 11-12.

[74] Id. at 11.

[75] Hoffman, supra note 33, at 4.

[76] See Nolan-Haley, supra note 16, at 273-274 ("A second approach for avoiding UPL issues is to carve out an exception to UPL for mediators. This avoids the difficult problem of trying to distinguish between legal information and advice.").

[77] See generally id. at 268 (noting that the UPL doctrine was originally designed as a device to protect the public against fraud and incompetent, unlicensed lawyering).

[78] See generally, Cooley, supra note 30, at 1.6.5 ([T]here is a debate within the ADR profession as to what conduct does and does not constitute the unauthorized practice of law when a person is serving in the role of mediator...[T]he heart of the debate seems to revolve around differences between facilitative and evaluative mediation...").

[79] See generally Nolan-Haley, supra note 16, at 273 ("The advice/information distinction can be problematic as a long-term solution to the problem of managing UPL in mediation practice. Some commentators have observed that there is no real difference between information and advice. Moreover, distinguishing between the two forms of communication may be more difficult for a layperson than for an attorney and may well depend upon context.") (emphasis added).

[80] See ACR Proposal, supra note 8, at 7("Mediators often face complex and ambiguous circumstances in the midst of mediating, and they are called upon to make a broad range of decisions concerning proper and effective practice. These decisions will be reached through an interplay of specific circumstances of the mediation with the fundamental principles of the process. When considering possible steps or interventions, the specific context requires a mediator to consider — explicitly or implicitly — a range of factors...").

[81] Id.

[82] Id.

[83] See Cole, supra note 1, §10:5, at 10-36.

[84] Id. at 10-38 – 10-39 (citing In re Mid-America Living Trust Associates, Inc., 927 S.W.2d 855, 859 (Mo Sup. Ct. 1996)).

[85] Robert W. Rack, Jr., Thoughts of a Chief Circuit Mediator on Federal Court-Annexed Mediation, 17 Ohio St. J. on Disp. Resol. 609, 619 (2002).

[86] See Cole, supra note 1, §10:5, at 10-36 (citing a survey of state and selected municipal bar counsels or prosecution agencies charges with unauthorized practice responsibilities conducted in April, 1988).

[87] Id. at 10-45 ("The additional safeguard of court approval could be added for mediation of disputes already in litigation.).